Fifth Circuit Recognizes Heightened Commonality Requirement
The U.S. Court of Appeals for the Fifth Circuit recently reversed the grant of class certification in M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012). In so doing, it provided a useful example of the ways in which the Supreme Court's recent Wal-Mart decision strengthened the commonality requirement of Rule 23(a)(2).
In M.D., the named plaintiffs sought certification of a class of children who are or will be in the Permanent Managing Conservatorship of the Texas Department of Family and Protective Services. The complaint alleged that various system-wide problems in the administration of the conservatorship subjected the proposed class members to a variety of constitutional harms. It requested broad declaratory and injunctive relief against the State. The district court granted class certification.
On appeal, the Fifth Circuit found that the district court failed to conduct the "rigorous analysis" required by Rule 23, finding that "the district court's analysis may have been a reasonable application of pre-Wal-Mart precedent, but the Wal-Mart decision has heightened the standards for establishing commonality under Rule 23(a)(2), rendering the district court's analysis insufficient." The Fifth Circuit could not "identify the scope of the 'common questions of law' found by the district court, let alone determine whether they [were] capable of classwide resolution under Wal-Mart." The district court also failed to analyze the state's argument that dissimilarities within the proposed class precluded commonality with specific reference to the elements or defenses of the claims. The common issue in this case was "a somewhat amorphous claim of systemic or widespread misconduct on the part of the defendant." As such, the Fifth Circuit held that the district court must be "particularly precise" when explaining how the resolution of those claims will resolve an issue that is central to the validity of each class member's claims. Having failed to do so, the district court did not perform the requisite "rigorous analysis."
In addition, the Fifth Circuit found that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). Rule 23(b)(2) allows a class action to be maintained when the proposed class seeks specific injunctive relief and the proposed class members have been harmed in the same way. Again looking to Wal-Mart, the Fifth Circuit found that Rule 23(b)(2) applies "only when a single injunction or declaratory judgment would provide relief to each member of the class." In this case, the class certified by the district court sought "at least twelve broad, classwide injunctions" that would require the district court to oversee a complete overhaul of the Texas foster care system. In vacating the certification, the Fifth Circuit found that while certain sub-claims could potentially be certified under Rule 23(b)(2), the "amorphous super-claim" could not because some of the underlying claims alleged individual injuries.
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